Opponents of the state’s immigration enforcement legislation have asked a federal appeals court to reconsider a decision that allowed most of the controversial measure to go into effect.
Attorneys with the American Civil Liberties Union, Travis County and the city of Austin on Tuesday asked the 5th Circuit Court of Appeals to rehear the case en banc, which means the entire court would consider the lawsuit. The move comes two weeks after a three-judge panel of the same court allowed most of the law, Senate Bill 4, to go into effect after major portions were initially blocked by a federal district judge in August. The ACLU represents the small border city of El Cenizo, which was the first to file suit last year to stop SB 4's implementation days after Gov. Greg Abbott signed it into law.
SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration "detainers" — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000. The legislation also applies to public universities and colleges.
In August, U.S. District Judge Orlando Garcia temporarily halted several parts of the bill, including a section that requires jail officials to honor the detainers. He also blocked sections that prohibit local entities from pursuing “a pattern or practice that 'materially limits' the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.
But the appellate court panel’s ruling two weeks ago effectively unshackled the legislation, allowing most of it to be implemented while the original case goes back to Garcia’s courtroom. The only provision that is still blocked is one that punishes local officials for “adopting, enforcing or endorsing” policies that prohibit or limit enforcement of immigration laws. The judges kept that injunction in place but said it only applies to the word “endorse.”
The list of local entities that have previously filed suit against SB 4 also includes El Paso, Maverick and Bexar counties, the cities of El Paso, San Antonio and Houston, among others. Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Educational Fund, or MALDEF, said if the 5th Circuit agrees to hear the case, all parties to the suit will become involved. MALDEF represents the cities of San Antonio and El Paso, as well as Bexar County, in the litigation.
“We are all supporting each other’s efforts and working together in close collaboration and putting our resources in a two-pronged strategy,” she said.
The other angle is preparing for the trial at the district level, where Garcia will hear arguments over the bill’s constitutionality. Perales said it’s unclear when — or if — the 5th Circuit will come down with a decision on Tuesday’s petition. Another option is to ask the U.S. Supreme Court to consider the injunction, but Perales said plaintiffs have to wait on the appellate court to act before considering that move.
“It’s like a decision tree, and we won’t know what options are available to us until the 5th Circuit responds,” she said.
After the court’s decision earlier this month that allowed most of the bill to stand, several opponents of the measure said they weren’t surprised because the 5th Circuit is considered a conservative body. But Perales warned against painting any group of judges with “too broad a brush.”
She pointed to a 2013 decision by the same court in favor of MALDEF during its case against the Texas city of Farmers Branch, which passed an ordinance that would have punished landlords from renting to people based on their immigration status.
“These are the life lessons that teach you not to predict what the 5th Circuit might do or how they might decide a case,” she said.